Month: October 2015

27th Anniversary Gala Seating | Saturday, Nov. 7 at 6:30 pm

If you’ve registered for the NAPABA Convention in New Orleans, join AABANY’s table for the 27th Anniversary Gala! During the registration process, you had the opportunity to pre-select your Gala seat. Please review your selection by clicking here. NAPABA will be unable to make any seat assignment changes after Friday, Oct. 30.

Here is the story of how a tragedy in the art world was recently averted when grassroots activism, coupled with a successful mediation, avoided litigation and achieved an outcome satisfying to all concerned.

As reported in periodicals such as The Sacramento Bee and The New York Times,(1) it all began when Rago Arts and Auctions, a Lambertville, New Jersey auction house, announced an April 17, 2015 auction of about 450 Japanese internment camp items, including dozens of hand-carved wooden family name plates that were attached to barracks, various other crafts (such as cigarette cases woven from onion sack string), personal objects, ID cards and portraits, prisoner artworks, and numerous family photographs. This announcement prompted Japanese-Americans in Sacramento to launch a national campaign to persuade the seller to donate the items to a museum. The campaign included the Facebook page “Japanese American History: NOT for Sale,” which had garnered 6,200 followers and received almost 1,800 “likes” shortly before the auction date. Someone also started a petition on change.org, which called the sale “a betrayal of those imprisoned people who thought their gifts would be used to educate, not be sold to the highest bidder in a national auction, pitting families against museums against private collectors.” Social media posts called for the collection to be turned over to an educational institution, and internees and their descendants also wrote to say that they had recognized their own family members in the photos that were up for sale. For example, after the poet Janice Mirikitani saw an image of her cousin in a batch of photos that were expected to be sold for between $800 and $1,200, she posted the following on the Facebook page: “Do not commit this travesty of cheapening and ‘selling’ memories of cherished family members, and artwork which was created to survive the isolation and humiliation of the camp experience.”

Attorneys were not absent from this protest. The Board of Directors of the Asian/Pacific Bar Association of Sacramento (ABAS) voted unanimously to condemn the auction and wrote a letter to the auction house, expressing its “shock and disappointment” upon learning that these items were up for sale.(2) In the letter, the bar group further asked that the items “be withdrawn and that the Asian/Pacific Islander American community be given an opportunity to fully voice our concerns and work towards an avenue to preserve the incredible collection of items donated by those incarcerated during World War II and their families, so as to benefit history.” The ABAS letter even likened these artifacts to Holocaust property. Indeed, there were many protesters who recalled and/or equated this planned auction to the 2013 offer for sale of about 30 apparently Holocaust-related items on eBay, which included a striped prisoner uniform from Auschwitz, a pair of shoes, a prisoner’s suitcase, Star of David armbands, a concentration camp toothbrush, and other personal effects. In response to the worldwide outrage, eBay apologized, took down the items, and even donated $40,000 to charity.(3)

The auction house, however, initially refused to stop the scheduled sale, maintaining that the seller was “not in a position” to do so and was offended by the pressure being generated through social media. The collection in question had belonged to the late Allen H. Eaton, a former Oregon state legislator and anti-war activist, who became known as a champion of folk art both during and after World War II. In the aftermath of the bombing of Pearl Harbor, on February 19, 1942, President Franklin D. Roosevelt had issued Executive Order 9066, under which the Federal Government forcibly incarcerated some 120,000 people of Japanese ancestry who lived on the Pacific coast into ten “internment” camps—also referred to as “relocation” or “concentration” camps—scattered across the United States. Approximately 8,000 of the internees were from the Sacramento area and nearly two-thirds (about 77,000) were U.S. citizens. At the close of the war, Eaton visited five of these camps to study and collect the handicrafts made there, receiving many of the items in his collection as gifts from the internees he met. In 1952, he published a book about this experience entitled, “Beauty Behind Barbed Wire: The Arts of the Japanese in Our War Relocation Camps,” which included a foreword written by Eleanor Roosevelt. The book included 81 sets of photos of Japanese-American artisans and their works, and most of the items came from the Heart Mountain War Relocation Center in Wyoming, where approximately 14,000 people were imprisoned between August 1942 and November 1945.(4) Ironically, Eaton had written in the introduction to his book that he hoped that his writing would help right “a great wrong” done to Japanese-Americans. He had also hoped to curate an exhibition of his collection of artifacts to educate the public about the plight of Japanese-Americans during the war, but, unfortunately, that never came to pass. He died in 1962, bequeathing his collection to Thomas Ryan, a contractor who had worked for the Eaton family. Ryan subsequently bequeathed the collection to his son John, who cared for it for over 35 years and ultimately became the auction’s consignor.

In view of the foregoing, could the planned auction somehow be stopped through legal process? Did any of the internment camp survivors, or the descendants of those who had gifted the property to Eaton, have any legitimate claim of ownership (or some other right) to the artifacts in question such that they had a say in how they were disposed? Did ABAS or the Heart Mountain War Relocation Center have a cognizable legal basis or theory on which to challenge the planned auction? In short, there was an abundance of questions regarding who would be an appropriate party in interest here and what standing such a party had to bring, for example, an injunction application in the New Jersey courts to enjoin the auction. Based upon the collection’s apparent chain of custody, Ryan’s unfettered right to sell the items, and the immediacy of the auction, there appeared to be much uncertainty as to whether the auction could, in fact, be legally stopped in time. At bottom, the auction proceeding itself appeared to be a legal sale.

And then, two days before the auction, actor, director, author, and activist George Takei appeared on the scene. Yes, the same Takei who is perhaps best known for playing the character of Ensign Hikaru Sulu, helmsman of the U.S.S. Enterprise in the “Star Trek” television series and six feature films. In 1942, when he was only a child, Takei and his family were relocated to the Rohwer War Relocation Center in Arkansas and then later to the Tule Lake War Relocation Center in California. The time he had spent in these internment camps had made a lasting impression on him.(5)

With Takei’s involvement, Rago canceled the auction and negotiated a sale of the collection to the Japanese American National Museum in Los Angeles (www.janm.org), which the museum announced on May 2nd.(6) Takei, who serves on the board of the museum, was apparently “[i]nstrumental in convincing the auction house not to go forward with the sale.”(7) He “stepped in as an intermediary,”(8) successfully conducting a “mediation”(9) involving “a few calls … in the wee hours”(10) that resulted in the auction lots being pulled and sold to the museum. G.W. (Greg) Kimura, Ph.D., the President and CEO of the museum, was quoted as saying, “This collection wouldn’t be coming to JANM if it weren’t for the intervention and passion of George Takei. He stepped in to ask Rago that the auction be canceled, and, I mean, who can say no to George?”(11) As for the man himself, Takei had this to say:Many of the photos picture peoples’ grandparents and parents, and there’s a strong emotional tie there. To put that up on the auction block to the highest bidder, where it would just disappear into someone’s collection, was insensitive. The most appropriate and obvious place for the collection was the Japanese American National Museum. I talked to David Rago [of Rago Arts and Auctions] after the uproar, and he was very thoughtful and receptive… . [The internment camps were] an egregious violation of the American Constitution. We were innocent American citizens and we were imprisoned simply because we happened to look like the people who bombed Pearl Harbor. It shows us just how fragile our Constitution is. Now these items can be shared with a large audience.(12)

And to its credit, the auction house issued a statement saying, “It’s truly fitting that this material will reside in perpetuity at an institution dedicated to sharing the Japanese-American experience and based on the West Coast, the site of the evacuation… . [This unanticipated controversy will] fuel a larger conversation about the marketplace for historical property associated with man’s inhumanity.”(13)

What is this “mediation” that Takei so successfully performed? Mediation is a confidential dispute resolution mechanism in which the parties to the dispute engage a neutral, disinterested third-party who facilitates discussion to assist them in arriving at a mutually consensual resolution. Because mediation is a non-adjudicative process, there is no judge or other decision maker who will determine the merits of the dispute. Rather, the mediator’s role is to try and improve communications between the parties, explore possible alternatives, and address the underlying interests and needs of the parties in hopes of moving them towards a negotiated settlement or other resolution of their own making. Although a mediator may be asked to recommend possible solutions, a mediator is not authorized to impose a resolution, but, rather, provides an impartial perspective on the dispute to help the parties satisfy their best interests while uncovering areas of mutual gain. Thus, mediation can be particularly helpful in those situations where the parties either are not effectively negotiating a resolution on their own or have arrived at an impasse in their dialogue. Mediation is also prospective, not retrospective, in nature. While a litigation looks to past events to find fault and impose appropriate relief, a mediation focuses on the future to determine how the parties can best resolve the pending dispute and move on. In that respect, a mediation tends to be more cooperative, rather than adversarial, in nature.(14)

There are a number of lessons to be learned from this brief episode. First, although a seemingly obvious first step, the court system is not always the best option when there is a great sense of urgency, and especially when there is uncertainty on fundamental gateway legal issues like identifying a real party in interest and establishing proper standing. Second, methods of alternative dispute resolution can be both fast and cost-effective. Here, with the auction looming in a matter of days, everything was resolved—including finding a home for these treasured artifacts—in about two weeks, using little more than the will and the desire to get it done. Finally, oftentimes, identifying the right neutral is key to finding a satisfactory resolution. It pays to invest the time and effort necessary to select the appropriate neutral for the particular situation. Each dispute presents a unique set of circumstances, and a neutral who is suited for one dispute—because of background, skill, experience, subject matter expertise, community ties, or any other applicable criterion—is not always necessarily the best choice for every other kind of dispute. Here, Takei’s involvement was not only the right and apt choice for a whole host of reasons, but also highly effective in achieving closure for all the parties. There is rarely a dispute where alternative dispute resolution methods do not have some role to play.

Theodore K. Cheng is a partner at the international law firm of Fox Horan & Camerini LLP where he practices in commercial litigation, intellectual property, and alternative dispute resolution (ADR). He is an arbitrator and mediator with the American Arbitration Association (AAA) and Resolute Systems, as well as on the neutral rosters of various federal and state courts. Mr. Cheng also serves on the AAA’s Board of Directors. More information is available at www.linkedin.com/in/theocheng. If you are interested in ADR, join the ADR Subcommittee of AABANY’s Litigation Committee by contacting the Chair, Theo Cheng, at tcheng@foxlex.com.

† An earlier version of this article was originally published in Volume 26, Number 2 of the Entertainment, Arts and Sports Law Journal, (Summer, 2015), a publication of the Entertainment, Arts and Sports Law Section of the New York State Bar Association.

The Heart Mountain War Relocation Center is perhaps best known for the challenge by many of the younger, American-born Japanese males with U.S. citizenship (Nisei) to being drafted into the military from the camp in protest over the loss of their rights through the incarceration. This challenge led to the largest mass trial in Wyoming history, in which 63 Heart Mountain inmates were prosecuted and convicted for draft evasion. (AABANY, led by U.S. Circuit Judge Denny Chin and Kathy Hirata Chin, has performed a re-enactment of the draft resisters’ story based upon records of the court proceedings and other contemporaneous documents. This performance has since been repeated in many venues, including, most recently, at the New York Historical Society on May 16, 2015. See AABANY Blog (Apr. 24, 2015), available at blog.aabany.org/post/117271255917/new-york-historical-society-the-heart-mountain; N.Y. Historical Society, available at www.nyhistory.org/programs/heart-mountain-draft-resisters-trial-reenactment.) Notwithstanding this, approximately 800 Nisei joined the U.S. Army from this camp, either volunteering or accepting conscription into the famed and highly decorated 442nd Regimental Combat Team. See The Story of the 442nd Combat Team, available at content.cdlib.org/ark:/13030/hb2s2004jj/. The Heart Mountain Interpretive Center, a museum established in 2011 and dedicated to passing on the story of Heart Mountain to future generations through photographs, artifacts, oral histories, and interactive exhibits (www.heartmountain.org), also asked Rago to delay the auction or remove the artifacts from the sale so that Japanese cultural organizations could have the first chance to buy them.

Later this year, Takei will be starring with Lea Salonga and Telly Leung in a new Broadway musical entitled “Allegiance,” which is inspired by his own true-life experience.

Japanese American National Museum, “JANM Announces Acquisition of Japanese American Incarceration Artifacts,” Press Release (May 2, 2015), available at www.janm.org/press/release/381/.

Parkin Lee, AABANY Advisory Committee Member and longtime AABANY supporter, is Senior Vice President, Chief Legal Officer (“CLO”) and Secretary of Rockefeller Group International, Inc. (“The Rockefeller Group”). Recently, he was appointed President and CEO of Rockefeller Group Investment Management (“RGIM”).

Congratulations! How did you come to be appointed President and CEO of RGIM?

I keep telling people that it’s not a big thing! [RGIM] is a subsidiary created about eight years ago to develop the investment management business for The Rockefeller Group. One of the reasons I came over [from New York Life Insurance Company] [“NYLI”] was to help develop their investment management business and leverage the expertise they had in-house… . [In 2010] The Rockefeller Group acquired an investment management firm in London [i.e., Europa Capital]. Last year, when we acquired TA Realty, which manages over ten billion dollars in assets, we decided to combine its operations with [RGIM’s] … . We relocated all domestic operations to Boston, shed most of [RGIM] employees in New York, and needed leadership. As CLO [of The Rockefeller Group], I provided legal support for the acquisition of TA Realty and was one of the only senior officers who was intimately familiar with the deal. So I was asked to lead [RGIM].

The interesting aspects of this new position is to make sure that enterprise-wide, everyone knows what everyone else is doing, and to coordinate investments. On the compliance side … I’m assisting on regular meetings involving Tokyo, Boston, New York, and London to make sure everyone is aware of the issues and that we are addressing the issues consistently across all platforms… . International real estate investment management business is relatively new for the [the parent company,] Mitsubishi Estate [Co. Ltd.], so it’s been interesting to make everyone aware of the compliance requirements and to expand the understanding of how one goes about managing investments and managing businesses across borders. It’s a little bit of learning on the fly.

How would you describe your career trajectory?

Random walks. I had the good luck to have many random walks within [NYLI]. I spent twenty years there, and every few years I changed jobs. I went in as a private finance attorney. I had experience as a public finance attorney, though, so when [NYLI] decided to publicly issue bonds, I was the only attorney with the relevant experience and was asked to lead the project. That gave me exposure to other people and other aspects of the company. Coming out of that, I was then asked to lead the real estate group, which I did for 7 years. Then, [NYLI] wanted to expand and developed a mergers and acquisitions team and I was asked to be their attorney. So I did M&A for a while, then private equity, then venture capital, then derivatives, then investment management work. Then I found my way back to private finance and securities and headed up that practice.

Did you have any challenging times in your career? How did you overcome them?

When I was asked to head the real estate attorneys [at NYLI], I had no real estate experience. There were five attorneys, all more senior than I was, and most had titles above my title. In order to head up the group, they had to promote me two levels. I had to establish my credentials with the attorneys and gain their trust. I did that by taking on significant responsibilities and showing them that I could learn on the job.

[For example,] [w]e had the country divvied up geographically. I came into the position in the late 80s, early 90s, during a real estate recession. There was a lot of restructuring and bankruptcies in the portfolio. I took Texas and Louisiana, which were two of the busiest states for bankruptcies and mortgage foreclosures. There was a lot of learning on the job, rolling up my sleeves, and diving deep into the issues.

You are an attorney who leads a legal team and who will now also be leading the business and operations side of a company. What challenges do you expect down the road?

Being CLO is pretty much half a business role anyway, so you need to have a big view of things, a high level perspective of the issues, and an understanding of the business. You have to be facile with the financial numbers and have an understanding of the goals and objectives of the business people.

What’s interesting is the number of former attorneys leading business groups. The head of our industrial development team is a former lawyer, the head of our urban development team is a former lawyer, and so are a few of our regional officers. Legal training and the skill sets you develop as an attorney definitely come in handy: the ability to analyze situations, identify what are important versus non-important issues, and come up with interesting constructs to achieve a certain outcome given the materials at hand.

What was your first leadership position? How would you describe your leadership style?

My first leadership position was at [NYLI], heading the real estate group. My leadership style is know what your team is doing and make sure they know what each other is doing. Have an open door policy. Encourage discussion of issues. Encourage people to share ideas and thoughts and to help each other learn. For example, when I’m hiring, I look for people who have the knowledge and experience to do the job, but in terms of character and personality, I look for people who have intellectual curiosity, interests outside of the law. That to me indicates an open mind and that they are receptive to new ideas.

What impact has your ethnicity had your career?

I don’t think it has, at least not in my career. Has it made a difference? It’s really how other people perceive you. If you had asked me at different times in my career, I would have given you different answers.

I was an anomaly when I started practicing law in ‘81 at Dewey Ballantine. I was the only Asian American attorney out of about 360 attorneys. I’m not sure people knew what to make of me. That’s not necessarily a good or bad thing. No one came at me with preconceived notions, so it was sort of a blank slate. I had to prove myself. I don’t think there were any negative connotations.

You are very active in APA bar associations such as AABANY and NAPABA. Why is it important to you to participate in these organizations?

There are still issues that need to be addressed by Asian American organizations like AABANY, AALDEF and NAPABA. Mainstream organizations do not have the sensitivity or desire to go after such issues.

From the legal and professional development standpoint, I think Asian Americans still have problems becoming partners at law firms and need greater representation in-house. We’ve made strides, and it’s been gratifying to see the progress, but more progress needs to be made, especially in the partner ranks.

What role have mentors played in your career? What role do they continue to play?

It’s always great to be able to call up people and have an honest discussion, and to have others’ insights on personal and professional issues you may be having. That is really important. Whether you call them mentors or friends, it’s always valuable to have different viewpoints. AABANY and NAPABA have been great avenues for me to meet people on an ad hoc basis who can offer confidential, sincere, and honest opinions and who can do so because they have no personal vested interest otherwise. I have a nice network of people that I feel safe talking to about just about everything. That came out of the work I do at AABANY and NAPABA.

What’s the best career advice you have ever received?

Maintain flexibility. Going back to when I was asked to head the Real Estate group [at NYLI]. I get a call from the General Counsel’s Office. She says, “Parkin, I want you to lead the Real Estate Group.” I tell her, “I know nothing about real estate.” She says, “You’ll learn.” I tell her, “You realize you’ll have six very difficult personalities in that group.” She says, “Yes. By the way, this is highly confidential. You are not allowed to talk to anyone in this department about this.” Thankfully, there were two senior attorneys who had just joined the business side and whom I was friendly with. Both said to me, “This is going to be a challenge. It’s not going to be easy. But opportunities like this do not come along every day. You’ve gotta do it.” They were absolutely right.

There are times when you are asked to do something that seems frightening and difficult, but the people asking you do it have faith in you and that’s why they’re asking you. You have to have the same amount of faith in yourself.

Any advice for our readers who aspire to follow in your footsteps to the C-suite?

The best route to advancement in-house is to be open to doing different things. If people ask you to take on a job or project that’s a little bit outside of your wheelhouse, do it. The educational experience is well worth it. You’ll meet people within the company you otherwise would not have had a chance to meet. You’ll expand your network, expand your visibility within the company, and expand your experience and knowledge.

Once again, congratulations to Magistrate Judge Peggy Kuo, who was sworn in on October 9, 2015. Her appointment was featured in World Journal, a prominent Chinese language newspaper. To read a translation of the article, “EDNY Adds Another Asian Female Judge,” which mentions AABANY President William Wang, read below. To read the article, click on the link in the title.

Thank you to AABANY Member Lucia Yang for the translation.

Peggy Kuo was appointed to be the third Asian American judge in the United States District Court, Eastern District Court of New York. Kuo graduated from Harvard Law School, used to work as the Deputy Director of the Office of Administrative Trials and Hearings of New York City and the Chief Hearing Officer of NYSE.

Peggy Kuo, 51, graduated from Yale University and Harvard Law School. She used to clerk for Judge Judith Rogers at the District of Columbia Court of Appeals, worked as the Assistant U.S. Attorney of the District of Columbia and the Acting Deputy Chief of U.S. Department of Justice, Civil Rights Division. In addition, she worked as a prosecutor at the United Nations International Criminal Tribunal in the Hague from 1998 to 2002, where she was in charge of investigating and prosecuting the war criminals in former Yugoslavia and crimes against humanity.

Kuo served as the Chief Hearing Officer at the NYSE for six years since 2005, and then served as the Deputy Director and General Counsel of the Office of Administrative Trials and Hearings of New York City since February, 2011. Kuo’s appointment to be the Magistrate Judge of the Eastern District Court of New York was approved on July 21, 2015. She was sworn in recently. Meanwhile, Kuo is a member of the Asian American Bar Association of New York and served as the vice president of Manhattan Legal Services and on the board of the Federal Bar Council.

Kuo’s parents immigrated to the U.S. from Taiwan when she was three and hence she can speak fluent Taiwanese. Her father works as civil engineer in New York, while her mother takes care of the family. Kuo is second of four sisters in her family, all her sisters become doctors or lawyers. Kuo said that she never thought about becoming a law enforcer when she was a child, “because at that time, there was basically no female judges or district attorneys.” But after graduating from law school, she decided to give it a try and now has become one of the few Asian American judges in federal courts.

The Asian American Bar Association of New York applauded her appointment and congratulated on her selection. President William Wang pointed out that Kuo’s appointment represented an increasing number of Asian American judges in federal courts, and reflected the efforts of federal courts to appoint judges from diverse background. Wang also stated that the number of Asian American judges in all levels of U.S. courts is disproportionate with the number Asian American members in the community. AABANY will make continuous efforts to have more qualified Asians serve in the judicial branch.

Peggy Kuo’s appointment made her the third Asian American judge in Eastern District of New York. The other two are Judge Pamela Chen and Magistrate Judge Marilyn D. Go. All of the three judges are female.

Former Board Member Vinoo Varghese was recently quoted in New York Law Journal. Check out the details from Varghese & Associates below.

The New York Law Journal sought Vinoo’s opinion on the highly-covered 76-day trial in which the government charged three former executives with fraud claiming their actions led to the demise of the white-shoe law firm Dewey & LeBoeuf. The judge declared a mistrial yesterday after 21 days of deliberations and the jury deadlocked on most counts against the three.

Vinoo described to the New York Law Journal the process of and history behind a judge’s instructions to a jury to continue deliberations when there’s no verdict. He also explained what a mistrial means for the defense and client.

Specifically Vinoo told the New York Law Journal:

If a jury hasn’t reached a verdict and sends notes declaring that it is deadlocked, the judge can read a so-called “Allen” charge instruction, derived from an 1896 U.S. Supreme Court case, that is basically a push from the judge to reach a verdict….

Some defense lawyers believe that a mistrial is good because you live to fight another day, but the question then becomes, does the client have the stomach for that. This isn’t a simple issue for a defense lawyer.

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This is the blog for the Asian American Bar Association of New York (AABANY). The views expressed by the authors of any particular blog entry are those of the authors only and may not reflect the views of AABANY. The inclusion of any link or re-blog of any post does not imply any endorsement of any views expressed in such post. Nothing on this blog should be construed to be legal advice.